avoiding any representation that is not founded in truth; or concealment of any fact that may give either party an advantage over the other." 1

1 Blaney on Life Ins. 49.

CHAPTER XVI.

OF ASSIGNMENT OF POLICIES OF INSURANCE UPON LIFE.

§ 325. Ir appears that there has never been any long existing doubt that a life policy is assignable; and, as has been well observed, without the power to assign, "the insurance on lives would lose half its usefulness."2 Such policies. are assignable, though the question has been agitated in England, whether they are assignable under the statute which has been referred to, of 14 Geo. 3, c. 48,3 which requires an interest in the life insured. But Vice-Chancellor SHADWELL 4 held, that an assignment of a life policy, for a valuable consideration, is good, provided there be no objection to its validity at the time when the policy is effected; that if the party effecting the policy possess an insurable interest at that time,5 that interest will be sufficient to support the policy in the hands of the assignee for valuable consideration, and he will be entitled to bring an action in his own name for the sum insured. In this case one of the mesne assignments was voluntary, but valuable consideration had been given for it by a subsequent assignment.

1 1 Bell, Comm. 545.

2 Ibid.

3 See ante, § 297, and Ellis on Fire and Life Ins. 143.

4 Ashley v. Ashley, 3 Sim. Ch. R. 151.

5 As to the interest of the assured in Life Policies, see ante, Chap. XIV., and ante, § 211; Mackenzie v. Mackenzie, 5 Eng. Law & Eq. R. 67; Cook v. Black, 1 Hare, Ch. R. 390; Gingell v. Bean, 1 M. & Grang. R. 555.

6 For Forms of a Life Policy, see Appx. pp. ix-xvii., and for Heads of Indenture of Assignment of a Policy of Insurance upon Life, as a security for a debt, see Appx. p. xiv.

§ 326. By the terms of the assignment of a life insurance policy, the assignee was to receive the proceeds, and if other securities held by him were insufficient for that purpose, to apply the same to the satisfaction of his claims against the assignor, and to pay over the residue, if any, to the wife of the latter. The Chancellor of Maryland held, that upon the facts, there was such a consummate transfer and delivery of the policy in question, as took from the husband the legal power and dominion over it; that after he had assigned the policy by indorsement and delivery, for the purposes as were disclosed in the evidence, there no longer remained in the assignor any authority or control over it; and that the insurance company had full authority to pay the money to the assignee.1 Still, the effect of this and the preceding decision

1 Harrison v. McConkey, 1 Johns. (Md.) Ch. R. 34. "This," remarked the Chancellor, "was not like the case of Pennington v. Patterson, 2 Gill & Johns. 208, and Bradley & wife v. Hunt, 5 Gill & Johns. 54, in which the legal power and dominion over the property in dispute remained, notwithstanding the acts done, by the alleged donors; but it is the case of an absolute transfer of the entire possession and title, leaving the party making the transfer no power whatever over the subject, and requiring nothing of him or his administrator to perfect it." In Palmer v. Merrill, 6 Cush. (Mass.) R. 282, a case of Life Insurance, Shaw, C. J., says, "According to the modern decisions, courts of law recognize the assignment of a chose in action so far as to vest an equitable interest in the assignee, and authorize him to bring an action in the name of the assignor, and recover a judgment for his own benefit. But, in order to constitute such an assignment, two things must concur; first, the party holding the chose in action must, by some significent act, express his intention that the assignee shall have the debt or right in question, and, according to the nature and circumstances of the case, deliver to the assignee, or to some person for his use, the security, if there be one, bond, deed, note, or written agreement upon which the debt or chose in action arises; and, secondly, the transfer shall be of the whole and entire debt or obligation, in which the chose in action consists, and, as far as practicable, place the assignee in the condition of the assignor, so as to enable the assignee to recover the full debt due, and to give a good and valid discharge to the party liable. The transfer of a chose in action bears an analogy, in some respect, to the transfer of personal property; there can be no actual

is not such as can prevent questions being raised between the assignee and the office: they merely decide the assignee's right to bring an action.1

§ 327. Whether a right is secured by a mere deposit of a life policy, or by a formal assignment, it can make no difference; the effect in equity is to give the party taking the security all that an assignment would give him: the latter does, in fact, assign the benefit of the policy. A transaction, whereby the assured gives to a person lending money to him a right to the repayment of the money out of the money which is to become due in respect to a life policy, is in truth an assignment. A policy of insurance upon the life of the party obtaining it, is assigned as security, with a covenant by the assignor that he will pay the premiums to the insurance company, and that, if he does not, it shall be lawful for the assignees to pay them, and recover the amount from the assignor, as money paid to his use; and the plaintiff declares against the defendant, in debt, reciting the deed, and alleging payment of a premium on default made by the defendant; whereby an action had accrued to the plaintiff. In such case,

manual tradition of a chose in action, as there must be of personal property, to constitute a lien; but there must be that which is similar, a delivery of the note, certificate, or other document, if there is any, which constitutes the chose in action, to the assignee, with full power to exercise every species of dominion over it, and a renunciation of any power over it, on the part of the assignor. The intention is, as far as the nature of the case will admit, to substitute the assignee in place of the assignor as owner." And see ante, § 211.

1 Ellis on Fire and Life Ins. 143.

2 Per Sir James Wigram, V. Chan., in Cook v. Black, 1 Hare, Ch. R. 393; and see Powles v. Innes, 10 M. & Welsb. R. 10; Wells v. Archer, 10 S. & Rawle, (Penn.) R. 412. Delivering a policy of life insurance by the assignor to the attorney and representative of the assignee, is sufficient. delivery to vest the title in the assignee, and good against all except the creditors of the assignor. New York Life Ins. Co. v. Flack, 3 Mill. (Md.) R. 341, (Co. of Appeals.)

although the deed contained no express covenant that the defendant should, in any stated event, pay the amount of the premium, the action is maintainable.1

§ 328. But in an action of assumpsit, in which it appeared that an assignment for a good consideration from the assured in a life policy, by an indorsement thereon in writing of the sum insured thereby, notice of which was given to the insurers, but the policy remained in the hands of the assignor, it was held, did not transfer to the assignee such an interest in the policy as entitles him, if the estate of the assured proves insolvent, to recover the whole sum assigned to him of the assured's administrator, who has received the whole amount of the policy from the insurers.2 SHAW, C. J., who delivered the judgment of the court in this case, said, "It appears to

us that the order indorsed on this policy, and retained by the assured, fails of amounting to an assignment. We do not question that an assignment may be made of an entire fund, in the form of an order drawn by the owner on the holder of the fund, or party indebted, with authority to receive the property or discharge the debt. But if it be for part only of the fund or debt, it is a draft or bill of exchange, which does not bind the drawee, or transfer any proprietary or equitable interest in the fund, until accepted by the drawee. It therefore creates no lien upon the fund. It seems to us quite clear, that the plaintiff acquired no such interest in this policy as would enable him to maintain an action against the insurers. He seems himself to have thought so too; for

I Barber v. Butcher, 8 Adol. & Ell. R. 862; Ellis on Fire and Life Ins. Ch. V.; and see Appx. p. xiv.

2 Palmer v. Merrill, 6 Cush. (Mass.) R. 282.

3 Upon this point the learned judge considered that the authorities were decisive, and he cited Welsh v. Mandeville, 1 Wheat. (U. S.) R. 233; S. C. 5 Ibid. 277; Robbins v. Bacon, 3 Greenl. (Me.) R. 345; Gibson v. Cooke, 20 Pick. (Mass.) R. 15.